State v. Griffin

• Decision Date: 25 May 1928
• Docket Number: No. 28709.,28709.
• Citation: 6 S.W.2d 866
• Parties: THE STATE v. HORACE GRIFFIN, Appellant.
• Court: Missouri Supreme Court

6 S.W.2d 866

THE STATE v. HORACE GRIFFIN, Appellant.

No. 28709.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

H.K. Bente and C.I. Bennington for appellant.

(1) The State must prove the defendant guilty of the crime charged in the information, beyond a reasonable doubt and by substantial and competent evidence, before a conviction can be had. State v. Miles, 174 Mo. App. 181; State v. Powell, 217 S.W. 35; State v. Geye, 252 S.W. 955; State v. Ramley, 257 S.W. 489. (2) The accused is presumed to be innocent of the crime charged against him, and the law presumes his innocence and not his guilt. This presumption attends defendant throughout the trial, and such presumptions follow him until the case is finally disposed of in court. It then follows that a verdict not supported by substantial testimony should not be permitted to stand. State v. Bowman, 294 Mo. 245; State v. Remley, 237 S.W. 489; State v. Thompson, 238 S.W. 115; State v. Singleton, 294 Mo. 346; State v. Guye, 299 Mo. 348; State v. Fuller, 306 Mo. 484; State v. Fowler, 265 Mo. 177. (3) The verdict of the jury in this case is not supported by any substantial evidence and is against the greater weight of the evidence. The State failed to show that the defendant had taken a drink of whiskey or of intoxicating liquor at any time during the day of the accident, or that defendant was under the influence of intoxicating liquor, save and except the bare statements of Kufel, Connors, Beggs and Ratcliffe, all of whom made the bare statement that he acted funny and seemed to be intoxicated. The evidence of the defendant and all of his witnesses clearly shows that defendant was duly sober and had not taken a drink during the day. The testimony further shows that defendant had not driven the car in the city of Lexington, and was not driving the car at the time of the accident in the city in front of the Connors house. The marshal had no business running the defendant down Highway Number 20, and trying to arrest him without a warrant. By Connors' own testimony, the chief witness for the State, who testified that defendant kicked him, stood up straight, and that even when he hit defendant on the head with a gun it failed to stagger him or knock him down, the defendant was duly sober, and there was no evidence offered by the State to support the verdict of the jury. State v. Timeus, 232 Mo. 177; State v. Hollis, 225 S.W. 952; State v. Barton, 209 S.W. 888; State v. Simpleton, 294 Mo. 346. (4) The State attempted to prove that defendant was operating a motor vehicle while in an intoxicated condition, or while drunk, but wholly failed to prove the defendant was intoxicated or drunk. The mere fact the defendant might have taken a drink and that some of the State's witnesses might have smelled liquor on his breath, does not prove the defendant guilty of the crime charged in the information, or the violation of Division G. Section 27, Laws 1921, p. 103. (a) One may be said to be "intoxicated" when liquor has affected his faculty to such an extent as to cause him to lose self control, but not when his drinking does not affect or disturb his mental or physical faculties. 19 C.J. 795, sec. D, note 19; 19 C.J. 799, sec. 5, note 58; Roden v. State, 136 Ala. 89. (b) Degree of intoxication contemplated by the Extra Session act and providing a penalty therefor is not established by proof of a flushed face, or a smell of liquor on his breath, or a disposition to talk freely or loudly, or a disposition to fight, but refers rather to a loss either of the faculties or the muscles of locomotion. Gard v. State, 33 Ohio Cir. Ct. 632. (c) The mere fact that the effect resulting from the use of intoxicating liquor is visible is not sufficient to show that defendant was drunk, "Though one may be said to be under the influence of liquor, he is not necessarily intoxicated; this being far short of intoxication, which is the synonym of "inebriety" and "drunkenness." Freeburg v. State, 92 Neb. 346; Brooke v. State, 86 Ark. 364; State v. Hatcher, 303 Mo. 13. (5) The court erred in giving Instruction 4, for the reason that said instruction does not properly declare the law, nor properly describe the penalty. Laws 1921 (Ex. Sess.) p. 105, sec. 29, par. C.

North T. Gentry, Attorney-General, and Walter E. Sloat, Special Assistant Attorney-General, for respondent.

(1) The evidence was sufficient to send the case to the jury; it was their duty to pass on the facts. The fact of intoxication is ordinarily a matter of opinion which must be shown by men not expert in such matters. The jury believed from the general actions of the defendant, as shown both before and after the accident and the arrest, that he was intoxicated. State v. Reifsteck, 295 S.W. 742; State v. Fitzpatrick, 267 S.W. 906; State v. Hatcher, 259 S.W. 471. (2) Instruction 4 follows the statute, and the same instruction in the identical wording has been approved by this court. Laws 1921 (1st Ex. Sess.), p. 105, sec. 29, par. C; State v. Fitzpatrick, 267 S.W. 905. The defendant could under no consideration have received less than two years if he was sentenced to the penitentiary, even though the minimum punishment is not set out in the statute. Sec. 3698, R.S. 1919.

HENWOOD, C.

An information was filed in the Circuit Court of Lafayette County by which appellant was charged with operating a motor vehicle while in an intoxicated condition. The venue was changed to the Circuit Court of Pettis County, where he was tried and convicted. In accordance with the verdict of the jury, he was sentenced to imprisonment in the penitentiary for three years, and appealed.

It appears from the evidence produced by the State that, about four o'clock on Sunday afternoon, June 6, 1926, appellant and Harris Kemper and Miss Frances Crowley drove into the garage of Charles Kufel in Lexington, Missouri, in a big Hudson touring automobile and had some adjustment made on the engine of the car. Kufel, the garage keeper, testified that he did not notice which one of the men was driving the car, but both of them were in an intoxicated condition; that "they acted like it; like any drunken man acts; just like any man does when he gets drunk; they had a happy feeling." Later in the afternoon, between five and six o'clock, when it was reported to Mike Connors, deputy marshal of Lexington, that a Hudson car had collided with a Nash car, driven by a Mr. Cunningham, Connors got in the Nash car with Cunningham and started in pursuit of the Hudson car, on Highway No. 20, and in a westerly direction from Lexington. They overtook the Hudson car about three miles west of Lexington, running between forty and fifty miles per hour, with appellant driving and Kemper and Miss Crowley in the front seat with him. When Cunningham drove the Nash car along the side of the Hudson car, Connors commanded appellant "to stop, to consider himself under arrest." Appellant replied, "Oh, go to Hell," and increased the speed of the Hudson car sufficiently to leave the Nash car far in the rear. Shortly thereafter, and about four or five miles west of Lexington, in Lafayette County, appellant attempted to pass a Ford car, going in the same direction (west) and around a curve, at a low rate of speed, and in avoiding a collision with a Dodge sedan, coming from the west, he drove the Hudson, at the rate of fifty miles per hour into the rear of the Ford car, causing both cars to slide down an embankment and turn over on the right side of the highway. There were two men, two women and three small children in the Ford car. "They were all badly bruised and cut up." One of the small children was "hurt badly." No apparent injuries were suffered by appellant or his companions in the Hudson car. Within a few minutes, Connors and Cunningham reached the scene of the accident in the Nash car, and assisted in removing the occupants from both of the wrecked cars. When told again, by Connors, to consider himself under arrest, appellant started "fighting and cussing and kicking" Connors, and said to Connors: "I put one man from your town in the river and G____ D____ you. I will put you there inside of six months." Connors struck appellant with his pistol, and in the general mixup that followed, and while Connors was arranging to take Kemper and Miss Crowley back to Lexington, under arrest, appellant escaped, but was arrested later that evening by the sheriff (C.F. Frick) in the home of his uncle, about one mile from the point where the accident occurred. Connors testified that appellant and Kemper and Miss Crowley "were all three drunk," and that appellant "was crazy drunken mad." Other witnesses for the State, including H.E. Newton, driver of the Dodge sedan, and John Beggs and John Ratcliffe, who were in the Ford car, corroborated Connors as to appellant's conduct, and said that appellant and Kemper and Miss Crowley were intoxicated. Newton, Beggs and Ratcliffe said they smelled liquor on appellant's breath, and Newton said "it smelled like whiskey." Beggs further said that "once he (appellant) reached back in the car to get a gun and told him (Connors) he would kill him." Ratcliffe said appellant and Kemper were "staggering around" after the accident. Frick, the sheriff, testified that appellant was "intoxicated" when he arrested him, about one hour after the accident.

Appellant took the stand and testified at length in his own behalf. He said that, on the Sunday afternoon in question, he drove from Richmond to Lexington with Kemper and Miss Crowley in a Hudson car, but was not with them when they took the car to the garage; that he joined them again, when they started west out of Lexington, and Kemper drove the car through the city limits and "about a mile west of Myrick," where he (appellant) began driving; that he started around the Ford car on "a pretty sharp curve" and ran into the rear of the Ford car, in...